2014 North Dakota Century Code Title 12.1 Criminal Code Chapter 12.1-34 Fair Treatment of Victims and Witnesses
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CHAPTER 12.1-34
FAIR TREATMENT OF VICTIMS AND WITNESSES
12.1-34-01. Definitions. In this chapter, unless the context or subject matter otherwise
requires:
1. "Court" means a forum established by law for the adjudication of juvenile petitions,
criminal complaints, informations, or indictments.
2. "Crime" includes all felony offenses; class A misdemeanors, excluding violations of
section 6-08-16.1 for no-account checks; all violations of chapters 12.1-17 and
12.1-20, including all corresponding violations of municipal ordinances; and any of the
offenses in this subsection that may result in adjudication of delinquency.
3. "Crime of violence" means any crime in which force, as defined by section 12.1-01-04,
or threat of force was used against the victim.
4. "Custodial authority" includes city jail, county jail, juvenile detention center, regional
corrections center, halfway house, state penitentiary or Missouri River correctional
center, state hospital, or any other inpatient mental health or treatment facility to which
a criminal defendant may be sentenced or referred.
5. "Disposition" means the sentencing or determination of penalty or punishment to be
imposed upon a person convicted of a crime or found delinquent or against whom a
finding of sufficient facts for conviction or finding of delinquency is made.
6. "Family member" includes a spouse, child, sibling, parent, grandparent, legal guardian,
or custodian of a victim.
7. "Prosecuting attorney" includes city attorney, state's attorney, attorney general, or their
assistants.
8. "Registered victim" or "registered witness" means a victim or witness registered with
the statewide automated victim information and notification system.
9. "System" means the statewide automated victim information and notification system.
10. "Victim" means a natural person who has suffered direct or threatened physical,
financial, or emotional harm where there is probable cause to believe that the harm
has been caused by the commission of a criminal act. The term "victim" includes the
family members of a minor, incompetent, incapacitated, or deceased person.
11. "Witness" means any person who has been or is expected to be summoned to testify
for the prosecution whether or not any action or proceeding has yet been commenced.
12.1-34-02. Fair treatment standards for victims and witnesses.
Victims and witnesses of crime must be afforded the following rights where applicable:
1. Informed by those entities that have contact with the victim or witness as to the
availability of and the methods available for registration with the statewide automated
victim information and notification system. Those entities include law enforcement,
prosecuting attorneys, the courts, and custodial authorities. A victim or witness who
clearly objects to registration may not be required to register with the system or must
be able to opt out of the system.
2. Informed as to status of investigation. Victims and witnesses, upon request, must be
informed by law enforcement authorities investigating a criminal case of the status of
the investigation, except where the prosecuting attorney or law enforcement authority
determines that to disclose such information would unreasonably interfere with the
investigation, until such time as the alleged offender is apprehended or the
investigation is closed.
3. Informed as to criminal charges filed. Victims must be promptly informed by the
prosecuting attorney of any criminal charges, arising from an incident in which the
person was a victim, filed against any person arrested. The prosecuting attorney shall
also provide a brief statement in nontechnical language of the procedural steps
involved in the processing of a criminal case. Victims must also be informed by the
prosecuting attorney of the pretrial status of each person arrested, including bail and
any pretrial release conditions.
4. Notice of pretrial release.
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Registered victims must be given prompt notice of any hearing in which the
arrested person's pretrial release status will be determined. If the alleged offender
is scheduled to be released prior to an appearance in court, prompt notice must
be given to the registered victim and witness.
b. Victims who are not registered must be given prompt notice, by the law
enforcement agency that has made an arrest in any case involving a crime of
violence, of any hearing in which the arrested person's pretrial release status will
be determined. If the alleged offender in a crime of violence is scheduled to be
released before an appearance in court, the custodial authority shall give prompt
notice to the victim and witness or, if unavailable, to the arresting law
enforcement agency, which shall provide the notice to the victim or witness. The
law enforcement agency or custodial authority may fulfill its obligation to notify by
registering the victim with the system.
c. Victims and witnesses must be informed by the prosecuting attorney of the
methods for enforcing any pretrial release conditions including information as to
the level of protection available from law enforcement in the case of harm,
threats, or intimidation made to the victim or witness.
Notice as to victims' and witnesses' participation in court proceedings. Victims must be
informed by the prosecuting attorney of all court proceedings in a reasonable time
prior to the proceedings. Witnesses must be informed by the prosecuting attorney of
all court proceedings at which their presence is required in a reasonable time prior to
the proceedings and informed in nontechnical language of the procedural steps
involved in the processing of a criminal case. Victims and witnesses must be notified
by the prosecuting attorney of the cancellation of any scheduled court proceeding in
sufficient time to prevent an unnecessary appearance in court. All victims and
witnesses shall provide the prosecuting attorney with current information as to address
and telephone number, such information to be kept confidential subject to other
provisions of this chapter. The notice given by the prosecuting attorney to the victims
and witnesses must be given by any means reasonably calculated to give prompt
notice.
Services available. Victims and witnesses must be informed by the prosecuting
attorney and arresting law enforcement agency of all appropriate and available public
or private programs that provide counseling, treatment, or support for victims and
witnesses, including rape crisis centers, victim and witness assistance programs,
elderly victim services, victim assistance hotlines, social service agencies, and
domestic violence programs. The prosecuting attorney and law enforcement authority
shall advise victims eligible for services of the relevant provisions of chapter 54-23.4.
Employer intercession. Victims and witnesses upon request must be provided by the
prosecuting attorney with appropriate employer intercession services to ensure that
employers of victims and witnesses will cooperate with the criminal justice process in
order to minimize an employee's loss of pay and other benefits resulting from court
appearances.
Witness fee. Witnesses must be informed by the prosecuting attorney or the court of
the procedures to be followed in order to apply for and receive any witness fee to
which they are entitled under law.
Return of property. Victims shall have any personal property that was stolen or taken
for evidentiary purposes, except contraband, property subject to evidentiary analysis,
and property the ownership of which is disputed, returned by the court, prosecuting
attorney, or law enforcement agency within ten days after its taking or recovery if it is
not needed for law enforcement, prosecution, or defense purposes or as expeditiously
as possible when the property is no longer needed for law enforcement, prosecution,
or defense purposes. If there is a defendant, the prosecuting attorney shall notify the
defendant of the intent to return the property to the owner. Upon a motion made by the
defendant and upon good cause shown that the property contains exculpatory
evidence of the defendant's innocence, the court may order the law enforcement
personnel in possession of the property not to release it to the owner.
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Waiting area. Victims and witnesses must be provided by prosecuting attorneys and
defense attorneys as assisted by the court with a waiting area separate from the
defendant, defendant's relatives and friends, and defense witnesses if such an area is
available and the use of the area is practical. If a separate waiting area is not available
or practical, the court shall provide other safeguards to minimize the victims' and
witnesses' contact with the defendant, defendant's relatives and friends, and defense
witnesses during court proceedings.
Protection of identifying information. Victims and witnesses may not be compelled to
testify at any pretrial proceeding or at trial for purposes of identifying the victims' or
witnesses' address, telephone number, place of employment, or other personal
identification except for name without the victims' or witnesses' consent, unless there
is a showing of good cause as determined by the court.
Right to be present throughout trial. The victim must be informed by the prosecuting
attorney of the victim's right to be present throughout the trial of the defendant, except
as provided by rule 615 of the North Dakota Rules of Evidence.
Prompt disposition of case. Victims and witnesses must be informed by the
prosecuting attorney of their rights to a prompt disposition of the cases in which they
are involved as victims or witnesses as defined by the docket currency standards of
the North Dakota supreme court.
Notice as to scheduling of hearing. Registered victims must be informed of the date,
time, and place of hearing at which a plea of guilty or not guilty will be entered and of a
sentencing hearing. Victims who are not registered must be given the same
information by the prosecuting attorney. The prosecuting attorney shall explain to and
consult with the victim in nontechnical language details of any potential plea
agreement or verdict.
Victim impact statement. The victim must be informed by the prosecuting attorney,
prior to sentencing, of the victim's right to submit or make a written impact statement to
the court in any criminal case. If a presentence investigation is ordered, the probation
officer assigned the report shall include this information in the report. This statement
may include an explanation by the victim of the nature and extent of any physical,
psychological, or emotional harm or trauma suffered by the victim; an explanation of
the extent of any economic loss or property damage suffered by the victim; an opinion
of the need for and extent of restitution; and the victim's recommendation for an
appropriate sentence. The prosecuting attorney shall advise all victims that the
presentence report is subject to review by the defendant and that the report will
include the victim's statement. If the sentencing court does not order a presentence
investigation, the victim may submit a written impact statement, under oath, to the
office of the state's attorney which statement must be submitted to the sentencing
court. The victim of violent crime may appear in court to make an oral crime impact
statement at the sentencing of the defendant in appropriate circumstances at the
discretion of the judge. This oral statement must be made under oath and is subject to
cross-examination.
Notice of final disposition and parole procedures. Registered victims and witnesses
must be informed of the final disposition of any criminal case. Victims who are not
registered must be given the same notice by the prosecuting attorney. The prosecuting
attorney shall explain to the victim the parole process and pardon process and further
advise the victim of the necessity of advising the custodial authority and the parole
board and the pardon clerk of the victim's address in order for the victim to receive
further information under other provisions of this chapter.
Prompt notice of custodial release. Registered victims and witnesses must be
informed whenever a criminal defendant receives a temporary, provisional, or final
release from custody or whenever the defendant escapes from custody. Victims who
are not registered must be given the same notice by the appropriate custodial
authority. Notification must include the transfer of the defendant to a work-release
program, a community residential program, or transfer to a mental health facility. All
notices to the registered victim and witnesses concerning this release information must
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be within a reasonable time prior to the defendant's release or transfer. The notice
given by the custodial authority must be given by any means reasonably calculated to
give prompt notice.
Participation in parole board and pardon decision. Victims may submit a written
statement for consideration by the parole board, the governor, or the pardon advisory
board, if one has been appointed, prior to the parole board, the governor, or the
pardon advisory board taking any action on a defendant's request for parole or pardon.
A victim statement made under this subsection is a confidential record and may be
disclosed only to the parole board, the governor, the pardon advisory board, or their
authorized representative. Victims of violent crimes may at the discretion of the parole
board, the governor, or the pardon advisory board personally appear and address the
parole board, the governor, or the pardon advisory board. Victim testimony and written
statements under this subsection are confidential and may be disclosed only to the
parole board, the governor, the pardon advisory board, or their authorized
representative. Notice must be given by the parole board or pardon clerk informing the
registered victim of the pending review. The registered victim must be provided notice
of the decision of the parole board or of the governor and the recommendations of the
pardon advisory board, if any, and, if applicable, notice of the date of the prisoner's
release on parole or the prisoner's pardon, conditional pardon, reprieve, commutation,
or remission of fine. Notice must be given within a reasonable time after the parole
board or the governor makes a decision but in any event before the parolee's or
pardoned prisoner's release from custody.
Victims and witnesses of crimes committed by juveniles are entitled to the same rights
under this chapter in juvenile delinquency proceedings as in any other proceeding. In
addition, every victim or a witness who is a minor is entitled to have that person's
spouse, parent, guardian, and no more than two other designated adults present with
that person during any juvenile delinquency proceedings.
12.1-34-03. Responsibilities of victims and witnesses.
Victims and witnesses have all of the following responsibilities to aid in the prosecution of
crime:
1. To make a timely report of the crime.
2. To cooperate with law enforcement authorities throughout the investigation,
prosecution, and trial.
3. To testify at trial.
4. To notify the system, law enforcement authorities, prosecuting attorney, custodial
authority, parole board, pardon clerk, and court, where appropriate, of any change of
contact information. Except for release to a domestic violence sexual assault
organization as defined in section 14-07.1-01, all contact information provided must be
kept confidential.
12.1-34-04. Victim and witness services.
Each prosecuting attorney is responsible for securing for victims and witnesses of crime the
rights and services described in this chapter. Those services include all of the following:
1. Court appearance notification services, including cancellations of appearances.
2. Informational services relative to the availability of the collection of witness fees, victim
compensation, or restitution.
3. Escort and other transportation services related to the investigation or prosecution of
the case, if necessary.
4. Case process notification services.
5. Employer intercession services.
6. Expedited return of property services.
7. Protection services.
8. Family support services, including child and other dependent care services.
9. Waiting facilities.
10. Social service and other public or private agency referrals.
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12.1-34-05. Cause of action for damages or injunctive relief.
Nothing in this chapter may be construed as creating a cause of action for money damages
or injunctive relief against the state, county, municipality, or any of their agencies,
instrumentalities, or employees. Furthermore, the failure to provide a right, privilege, or notice to
a victim under this chapter is not grounds for the defendant to seek to have the conviction or
sentence set aside. This chapter does not limit any rights to which victims and witnesses of
crime are otherwise entitled.
12.1-34-06. Statewide automated victim information and notification system.
1. The information technology department may establish a statewide automated victim
information and notification system that must:
a. Permit a victim to register or update the victim's registration information for the
system by calling a toll-free telephone number or accessing a public website.
b. Notify a registered victim by telephone, mail, or e-mail in accordance with this
chapter.
c. Notify a registered victim by telephone, mail, or e-mail when the offender has a
scheduled court proceeding, a parole review, or a change in the status of the
offender's parole or probation status, including a change in the offender's
address.
d. Notify a registered victim by telephone, mail, or e-mail when a protective order
requested by the victim has been served upon the respondent.
e. Permit a victim to receive a status report for an offender under the supervision or
in the custody of the department of corrections and rehabilitation or other
correctional facility by calling the system on a toll-free telephone number or by
accessing the system through a public website.
2. The provision of offender and case data on a timely basis to the automated victim
information and notification system satisfies any obligation under this chapter to notify
a registered victim of an offender's custody and the status of the offender's scheduled
court proceedings.
3. The user agency shall ensure that an offender's information contained in the system is
updated to timely notify a victim that an offender has been released or discharged or
has escaped. The failure of the system to provide notice to the victim does not
establish a cause of action by the victim against the state or any custodial authority.
4. All affected entities, including custodial authorities, prosecuting attorneys, law
enforcement agencies, courts, the attorney general's office, and the parole clerk, shall
cooperate with the system operator in establishing and maintaining the statewide
automated victim information and notification system.
12.1-34-07. Medical screening and acute forensic medical examinations costs Reimbursement by attorney general - Use of evidence.
1. An acute forensic medical examination is an examination performed on an alleged
victim of criminal sexual conduct for the purpose of gathering evidence of an alleged
crime and is performed within ninety-six hours after the alleged crime unless good
cause is shown for the delay in performing the examination. When an acute forensic
medical examination is performed, the costs incurred by a health care facility or health
care professional for performing the acute forensic medical examination or any
preliminary medical screening examination may not be charged, either directly or
through a third-party payer, to the alleged victim.
2. A child forensic medical examination is an examination performed on an alleged child
victim of criminal sexual conduct for the purpose of gathering evidence of an alleged
crime. When a child forensic medical examination is performed, the costs incurred by
a health care facility or health care professional for performing the child forensic
medical examination or any preliminary medical screening examination may not be
charged, either directly or through a third-party payer, to the alleged child victim or the
child's parent, guardian, or custodian.
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Upon submission of appropriate documentation, the attorney general, within the limits
of legislative appropriations, shall reimburse the health care facility or a health care
professional for the reasonable costs incurred in performing the medical screening and
acute forensic medical examination.
Evidence obtained during a medical examination under this section may not be used
against an alleged victim for the prosecution of the alleged victim for a separate
offense.
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